Appellant has filed a motion for rehearing in this case in which he strenuously insists that we erred in two conclusions reached. He does not insist that we erred in any proposition of law stated, but seems to admit that if the facts justified the conclusions reached, then the law was properly applied.
His first insistence is that the particular diamond for which he is being prosecuted for embezzling did not come into his hands under the M.E. Pope agreement, but came into his hands while he was doing business at Longview under the firm name of Wendell Jewelry, or Wendell-Pope Jewelry Company. As it is a question of fact that appellant insists we are wrong in, there is but one way to arrive at a correct conclusion, and that is to go to the evidence adduced on the trial. We will refer to the testimony relating to this particular diamond and see whether or not the evidence offered in behalf of the State would authorize the jury to find that he held the goods as agent for Shuttles Brothers Lewis, instead of buying them outright as claimed by him. There is no contest in the case as to the fact that Shuttles Brothers Lewis were originally the owners of the diamond, and that they had never been paid for it, but appellant insists that the diamond was purchased on a credit, and that the debt was discharged by bankruptcy proceedings. If Mr. Prescott, the treasurer of the corporation, is to be given any credence, he testified that in May, 1911, the diamond was placed with appellant for sale; in August he sold it to Mr. Mabry of Hunt County for $650, $100 in cash, and contract for $550; it was a conditional sale, the title not passing to Mabry until the purchase price was fully paid. Under law this was a mortgage. When appellant made this trade with Mabry he transferred by indorsement, the contract of Mabry to Shuttles Brothers Lewis; and they were the legal owners and holders thereof, at the time of the bankruptcy proceedings of appellant and his father-in-law. It is true that this bankruptcy proceeding, although the claim was not listed, would release appellant as indorser on the Mabry contract, but it would in no sense make appellant the owner of the diamond. Mabry then had the diamond and Shuttles Brothers Lewis the conditional sale or mortgage contract. Subsequent to this time Mabry decided he could not pay for the diamond, and appellant so reported to Shuttles Brothers Lewis, and they canceled and surrendered the conditional sale or mortgage contract in consideration of Mabry surrendering the diamond. At this time appellant had no interest in the diamond nor in the mortgage, and the diamond by this transaction became the property of Shuttles Brothers Lewis, under the well known rules of law, and the bankruptcy proceedings became an immaterial matter in deciding whether or not the diamond was in fact embezzled by appellant. If he was the agent, as the facts clearly show, of Shuttles Brothers Lewis in securing the return of *Page 266 the diamond in consideration of the cancellation of the mortgage contract, the fact that Mabry delivered the diamond to him would not make him the owner, and if, when he reported the transaction to Shuttles Brothers Lewis, they left the diamond with him, as to whether or not he was guilty of embezzlement would depend wholly on the transaction that took place at this time. If they then resold the diamond at an agreed price to appellant, he would not be guilty of embezzlement, but there is no contention that this is true; all the evidence shows that the diamond was left in his possession on the terms and conditions of the M.E. Pope contract; this, they say, was a consignment contract, and the title to the goods always remained in them. He says they sold M.E. Pope goods on a credit. The evidence clearly shows he received from them some $12,000 worth of jewelry, either on consignment or by purchase on credit. This was the issue to be tried, and was fairly submitted to the jury for their determination as shown in the original opinion, and in a way not complained of in this motion. A.S. Prescott and R.H. Shuttles testify that the goods were not sold to appellant, but were placed with him on consignment; the evidence clearly shows that they frequently checked his stock and required an accounting for the goods not in stock; two of appellant's clerks, T.H. Andrews and W.W. Guy, testify that appellant admitted to them the goods were the property of Shuttles Brothers Lewis, Guy's testimony being copied in the original opinion. It is further in evidence that when a check given by appellant to Shuttles Brothers Lewis was turned down by the bank on May 11th that their business relations were severed, and all the goods of Shuttles Brothers Lewis, on hand, were delivered by appellant to them without question except this diamond; that in checking the goods the diamond which appellant is being prosecuted for was missing. Messrs. Prescott and Shuttles testify that appellant then asserted no claim to the diamond, but said he had delivered the diamond to M.M. Cherry to sell to his father-in-law, Mr. Morgan. Mr. Cherry says this is untrue. They further testify that appellant agreed to secure the diamond and return it to them on Monday morning. Instead of doing so, he left the State on Sunday night and was arrested in St. Louis on Wednesday, he then having the diamond in his possession. He was brought back to Texas by a detective, Joe Austin. He admits that when brought to Dallas he concealed the diamond before getting off the train, and being placed in jail. From that day until the day of the trial, the diamond disappeared from view, but while testifying he says he has always known where the diamond was, and on the trial secured and displayed it, but would not surrender it. These facts would support the finding of the jury that he was but the agent of Shuttles Brothers Lewis in handling this diamond, and by his acts and conduct was guilty of embezzling it. Of course, the testimony of defendant would support a finding that there was a sale on credit to him, but the jury did not accept his theory of the case, but found the facts to be as testified to by the State's witnesses. *Page 267
The attorney, Hon. Felix J. McCord, who files this motion for a rehearing, was not an attorney on the trial of the case, and perhaps he is, for that reason, excusable for the broad incorrect statement of the evidence in the motion for a rehearing. He must have relied on some person's statement to him, for certainly the record in this case on file in this court would not authorize nor justify such a statement of facts as he contends for in the motion filed. Even if we should view the facts from the testimony introduced by appellant alone, the facts, as stated in the motion would have no foundation nor justification in the record. But, of course, in passing on the sufficiency of the testimony to sustain a verdict, we do not and would not be warranted in law to consider the testimony of the appellant alone, but we must look to the whole record, and if the testimony as a whole will sustain the verdict, we have no legal right to disturb it.
The only other ground in appellant's motion is that he should have been permitted to introduce testimony tending to show that after his arrest and incarceration in jail charged with this offense, that Mr. Prescott and Mr. Shuttles made tentative propositions that if their losses were made good they would not push this prosecution. The court, in the cross-examination of Prescott and Shuttles, allowed the broadest range; it was shown they employed Mr. Allen to prosecute the case; the amount of their loss, their feelings towards appellant, and all facts that would tend to show their interest, bias, etc., for the purpose of affecting their credit as witnesses. But if they had gone so far as to compound a crime, under article 422, Penal Code, and thus render themselves liable to a criminal prosecution, this would be no excuse nor justification of the crime of embezzlement if appellant had theretofore committed that offense. Nor would such fact throw any light on the original transaction between appellant and Shuttles Brothers Lewis. It was this fact on trial, was appellant in charge of the diamond as agent in law of Shuttles Brothers Lewis, were the goods delivered to him on consignment, the title remaining in Shuttles Brothers Lewis, or did he purchase the diamond from them on credit? As before stated, if they had agreed not to prosecute if all their losses were made good, and that fact proven, this would not render appellant less guilty, nor aid the jury in determining whether or not the diamond was or was not originally sold to him.
On account of the incorrect statement of the testimony in the motion for rehearing, we have deemed it necessary to state the evidence rather at length, and in doing so, we are more fully convinced the original opinion was correct.
The motion for rehearing is overruled.
Overruled. *Page 268